The primary question raised in CLS Bank was whether a scheme for mitigating risk in financial transactions through the use of a third party intermediary was patentable when (and because) a computer was used as the third party. In winter 2014, clinic students Michael Chen ’14 and Rachel Yu ’14 co-authored an amicus brief with CCIA urging the Court to protect innovators from harmful, overbroad patents. The brief argued that software not tied to particular hardware was unpatentable because it represents an “abstract idea” that is ineligible for patent protection and because it constitutes impermissible “functional claiming.” The brief expressed particular concern that providing protection for the types of patents at issue would enable patent-owners to preempt all ways of implementing an idea, regardless of whether the patent-owner had actually invented them. To help determine which software patents were eligible for protection, the brief proposed a “specific hardware test.”

Several weeks ago, the Supreme Court issued its opinion in CLS Bank, finding the patents at issue invalid because the patents were directed to abstract ideas. The Court held that adding a requirement in the patent that the abstract idea should be implemented on a computer or adding other conventional, well-known steps to the patent did not transform the abstract idea into a patent-eligible invention. ◊